Citation Nr: 9807927
Decision Date: 03/17/98 Archive Date: 04/02/98
DOCKET NO. 94-45 039 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to an increased evaluation for ureterolithiasis,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
ATTORNEY FOR THE BOARD
Jean Steadman, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1964 to August
1970.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal of a December 1993 rating determination by
the Department of Veterans Affairs (VA) Regional Office (RO)
located in Portland, Oregon.
This case was previously before the Board in July 1996, at
which time it was REMANDED for further evidentiary
development. Those actions having now been completed, this
case is properly before the Board for adjudication upon the
merits.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected
ureterolithiasis, has increased in severity and, as such,
requires a higher disability rating.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the current symptomatology more nearly approximates the
criteria for a 20 percent evaluation for ureterolithiasis.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained.
2. The ureterolithiasis is moderately severe, chronic, and
marked with frequent attacks which require medical
intervention.
CONCLUSION OF LAW
The schedular criteria for a 20 percent rating for
ureterolithiasis have been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991 & Supp. 1997); 38 C.F.R. §§ 4.1, 4.7, 4.10, Part
4, Diagnostic Codes 7509 and 7510 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the veteran's
claim is plausible and thus well grounded within the meaning
of 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App.
629 (1992) (a claim of entitlement to an increased evaluation
for a service connected disability generally is a well-
grounded claim). The Board is satisfied that all relevant
evidence has been obtained with respect to this claim and
that no further assistance to the veteran is required in
order to comply with the Board’s duty to assist.
In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the
service medical records and all other evidence of record
pertaining to the history of the veteran's service-connected
ureterolithiasis. The Board has found nothing in the
historical record that would lead to a conclusion that the
current evidence of record is not adequate for rating
purposes. Moreover, the Board is of the opinion that this
case presents no evidentiary considerations that would
warrant an exposition of the remote clinical histories and
findings pertaining to the disabilities at issue.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) found in 38 C.F.R. Part 4. The Board attempts to
determine the extent to which the veteran's service-connected
disability adversely affects his ability to function under
the ordinary conditions of daily life, and the assigned
rating is based, as far as practicable, upon the average
impairment of earning capacity in civil occupations. 38
U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.
The veteran’s service-connected ureterolithiasis is currently
rated under the provisions of 38 C.F.R. § 4.115b, Diagnostic
Code 7510. Under those provisions, ureterolithiasis is to be
rated as hydronephrosis, except for recurrent stone formation
requiring one or more of the following symptoms which warrant
a 30 percent evaluation: diet therapy, drug therapy, or
invasive or non-invasive procedures more than two times
yearly.
Under Diagnostic Code 7509, severe hydronephrosis, rated as
renal dysfunction, with frequent attacks of colic with
infection (pyonephrosis) and with impaired kidney function
warrants a 30 percent evaluation. A 20 percent evaluation is
warranted for frequent attacks of colic requiring catheter
drainage. A 10 percent evaluation is warranted for an
occasional attack of colic, not infected, and not requiring
catheter drainage.
In assessing the degree of disability attributable to a
service-connected disability the disability is viewed in
relation to its whole history. 38 C.F.R. §§ 4.1, 4.2;
Schafrath v. Derwinski, 1 Vet. App. 589.
Of record are private hospitalization and treatment records
from March 1984 to September 1996, which reflect treatment
for various disabilities. In July 1984, the veteran was
hospitalized for kidney stones. After examination, the
examiner diagnosed renal lithiasis. In July 1988, the
veteran was hospitalized for a right upper ureteral calculus
and a cystoscopy, passage of ureteral catheter, and
extracorporeal shockwave lithotripsy (ESWL) treatment of the
upper ureteral calculus was performed. In June 1989, the
veteran was treated for nephrolithiasis. In March 1990, the
veteran was hospitalized and treated for a chronic and
significant obstruction at the inferior end of left ureter,
producing a generous hydronephrosis and a uretereotasis. In
July 1996, the veteran was treated and hospitalized for
recurrent nephrolithiasis. In August 1996, the veteran was
treated and hospitalized for left proximal ureteral stones
and underwent a left ureterorenoscopy and ureteroscopic laser
lithotripsy. The veteran also, underwent ESWL lithotripsy.
During a May 1993 VA examination, the veteran presented a
history of renal nephrolithiasis since service. He stated
that he had several subsequent stones and underwent a
nephroplasty or ureteroplasty during service and had
experienced no problems since. The veteran was
nephrologically evaluated as normal.
During an October 1996 VA examination, the veteran reported a
history of kidney stones during service. He reported kidney
stones in 1969 and 1970. In 1984, the veteran developed a
urinary obstruction in the right ureter secondary to an
impacted stone and had an ureteral lithotomy and
ureteroplasty. In 1988, the veteran underwent a cystoscopic
laser ablation of some stones. In 1992, the veteran was
diagnosed with renal stones in the left renal pelvis and
underwent two lithotripsies. In 1995, the veteran underwent a
failed laser ablation. The veteran complained of chronic
right kidney pain throughout the years. The veteran was not
currently passing any stones, but did have pain in the right
kidney area and in the penile area. The veteran complained
of difficulty starting his urinary stream and nocturia twice.
He reported that his stream was usually strong although he
had some shooting pains in the penile area. He reported no
bladder or kidney infections.
Upon examination, the examiner noted that the veteran’s
abdomen was flat and soft. A small umbilical hernia was
present and the veteran’s organs were not palpable. A mild
suprapubic tenderness was noted. The examiner noted a small
surgical scar in the right lower quadrant consistent with the
veteran’s prior history of kidney surgery. The veteran’s
testes were of normal size, shape, and consistency. No
evidence of nodules was noted and the epididymis was not
thickened. No evidence of prostatic enlargement or
nodularity was noted. The examiner’s diagnosis was history
of chronic and recurrent renal lithiasis, status post
multiple surgical procedures, including right ureteral
lithotomy, multiple lithotripsies and laser ablations of
stones. The examiner commented that the veteran had
moderately severe chronic renal lithiasis and seemed to have
fairly frequent attacks dating back to the 1960’s. The
examiner noted that the veteran’s attacks seemed to have
occurred approximately every two years and required some type
of intervention. The examiner noted that the veteran had
been offered drug therapy in the past but it was not
performed for unknown reason. The examiner opined that the
veteran could benefit from diuretics and dietary
restrictions. The veteran’s renal function laboratory test
results were normal. The examiner also, commented that the
veteran could be expected to continue to have difficulties
with chronic and recurrent renal stones requiring more than
likely invasive procedures.
A rating decision dated in December 1993 granted service
connection for ureterolithiasis and assigned a noncompensable
evaluation. In the veteran’s February 1994 notice of
disagreement (NOD), he sought an increased evaluation for his
service-connected ureterolithiasis. In a March 1997 rating
decision, the RO granted an increased evaluation for the
veteran’s service-connected ureterolithiasis to 10 percent
disabling. The veteran was advised that this was a partial
grant and that if he did not withdraw his appeal, his appeal
would be certified to the Board. The Board notes that the
highest evaluation that the veteran may receive under
Diagnostic Code 7509 of the VA's Rating Schedule, 38 C.F.R.
§ 4.115b, is 30 percent. Although the veteran's disability
was increased to 10 percent by the RO, pursuant to AB v.
Brown, 6 Vet. App. 35 (1993), the Board is required to
construe the appeal as an appeal for the maximum benefit
allowable by law or regulation and thus consider all
potentially applicable disability ratings.
Based on the objective medical evidence of record, the Board
concludes that the findings reveal moderately severe and
chronic ureterolithiasis. The veteran’s diagnoses include
renal lithiasis; right upper ureteral calculus; left proximal
ureteral stones; recurrent nephrolithiasis; chronic and
significant obstruction at the inferior end of left ureter,
producing a generous hydronephrosis and a uretereotasis; and
a history of chronic and recurrent renal lithiasis, status
post multiple surgical procedures, including right ureteral
lithotomy, multiple lithotripsies and laser ablations of
stones. The Board has considered all pertinent aspects of
38 C.F.R. Parts 3 and 4 as required by Schafrath, and finds
that the evidence provides a sufficient basis for a higher
evaluation. Based on these findings, the Board is of the
opinion that the ureterolithiasis exhibited by the veteran
more nearly approximates the criteria for frequent attacks of
hydronephrosis, thus warranting a 20 percent evaluation. The
Board acknowledges that the veteran does not require catheter
drainage and points out that the veteran’s attacks are not
merely occasional. The Board is further of the opinion that
the 20 percent evaluation granted herein adequately
compensates the veteran for his service-connected disability.
38 C.F.R. § 4.40. A higher rating is not warranted as
frequent attacks of colic with infection and kidney function
impairment are not shown. The need for invasive or non-
invasive procedures more than 2 times yearly has not been
demonstrated.
ORDER
A 20 percent evaluation for ureterolithiasis is allowed,
subject to the controlling laws and regulations governing the
payment of monetary awards.
V. L. Jordan
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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